Hoffmann v. Hoffmann ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
DOUGLAS J. HOFFMANN, Petitioner/Appellee,
v.
CHRISTINE R. HOFFMANN, Respondent/Appellant.
No. 1 CA-CV 16-0358 FC
FILED 3-21-2017
Appeal from the Superior Court in Maricopa County
No. FC2010-052553
The Honorable Jeanne M. Garcia, Judge
AFFIRMED
COUNSEL
Michael J. Shew, Ltd, Phoenix
By Michael J. Shew
Counsel for Respondent/Appellant
Karla L. Calahan, Scottsdale
Counsel for Petitioner/Appellee
HOFFMANN v. HOFFMANN
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco1 delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.
O R O Z C O, Judge:
¶1 Christine Hoffman (Mother) appeals the family court’s ruling
denying her post-decree petition to modify parenting time and legal
decision-making for her two minor children. For the following reasons, we
affirm.
BACKGROUND
¶2 Mother and Douglas Hoffman (Father) were married in
November 2007 and have two minor children (born in 2001 and 2003). After
three years of marriage, in November 2010, the family court issued a decree
of dissolution of marriage and a parenting plan awarding the parties joint
decision-making and legal custody of the children, designating Mother as
the primary physical custodian, and giving Father substantial parenting
time.
¶3 On May 23, 2014, Mother petitioned to modify legal decision-
making and parenting time. The petition alleged that on April 28, 2014,
Father had “tried to commit suicide,” “sent an email to [the] children saying
goodbye,” and left a suicide note to his parents and sister. The petition
further recounted that Mother and the children had been leaving their
home on that day when they were met by Father “brandishing [a] weapon
and telling them he will see [them] in heaven.” Mother alleged that this
incident resulted in the police chasing and arresting Father on DUI and
felony flight charges. Mother’s petition also alleged that Father had been
stalking her and her friends. The petition requested that the court revoke
Father’s parenting time and award Mother full decision-making authority
and child support.
1 The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
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Decision of the Court
¶4 On May 29, 2014, the court issued an emergency order
granting Mother sole decision-making authority and sole physical custody
“with no parenting time to [Father] until further order of the court.” On
June 9, 2014, the court held a return hearing regarding temporary orders.
Following the hearing, the court ordered Father to have supervised
parenting time until such time as the court received the police reports from
the April 28 incident and an “updated psychologist report” stating that
Father is not a danger to himself or others. The order also set an evidentiary
hearing as well as directed Mother to participate in alcohol testing and a
lifestyle assessment at TASC.
¶5 The court held a three-day evidentiary hearing on Mother’s
petition to modify on October 27, 2014, and March 11 and 12, 2015. On May
12, 2015, the court entered an unsigned minute denying Mother’s petition
and making findings of fact under Arizona Revised Statutes (A.R.S.) section
25-403.2 On June 16, 2015, Mother lodged a proposed form of judgment,
seeking the entry of an appealable final judgment. On June 29, 2015, as
supplemented on July 2, 2015, Mother moved for “reconsideration and/or
clarification” of the ruling on the petition to modify. On May 3, 2016, the
court entered a signed ruling denying Mother’s May 23, 2014 petition to
modify.
¶6 The court filed an unsigned minute entry addressing
Mother’s motion for reconsideration on May 4, 2016. After Mother lodged
a proposed order for the purposes of seeking appellate review, the court
issued a signed order on June 7, 2016 reflecting that same relief. The June 7
order denied Mother’s motion to reconsider, but made several clarifications
of and modifications to its findings in its May 12, 2015 minute entry.
Mother filed a notice of appeal on May 18, 2016, and a supplemental notice
of appeal on June 16, 2016.
DISCUSSION
I. Jurisdiction
¶7 Father challenges our jurisdiction to hear this appeal. Because
the issue of jurisdiction is a threshold matter, we are obligated to address
Father’s argument first. See Kool Radiators, Inc. v. Evans, 229 Ariz. 532, 534,
¶ 8 (App. 2012). Father asserts “this court has no subject matter jurisdiction
of this appeal because the [court’s order on Mother’s motion for
2 Absent material change since the date of the events, we cite to the
current version of statutes.
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reconsideration] is not in final or appealable form.” Father has not shown
this court lacks appellate jurisdiction.
¶8 The family court filed its signed, appealable ruling on
Mother’s petition to modify on May 3, 2016. Mother then filed a timely
notice of appeal from that order on May 15, 2016. See ARCAP 9(a) (stating
“a party must file a notice of appeal . . . no later than 30 days after entry of
the judgment from which the appeal is taken”). This notice of appeal
included reference to the unsigned “minute entry filed on May 4, 2016
denying [Mother’s] Motion for Reconsideration and/or Clarification.” On
June 7, 2016, the court filed a signed order denying Mother’s motion for
reconsideration. Arizona Rule of Civil Appellate Procedure 9(c) provides:
A notice of appeal . . . filed after the superior court announces
an order or other form of decision—but before entry of the
resulting judgment that will be appealable—is treated as filed
on the date of, and after the entry of, the judgment.
¶9 Therefore, Mother’s appeal of the court’s denial of her motion
for reconsideration is considered filed on June 7, 2016, the same day as the
final ruling on the motion, and is therefore timely. Mother then filed a
“supplemental notice of appeal” on June 16, 2016, following the issuance of
the June 7, 2016 signed order, to ensure that this court had appellate
jurisdiction over all issues she wished to press. Thus, even if Mother’s
appeal had been premature, it would have been cured by her supplemental
notice of appeal. See Engel v. Landman, 221 Ariz. 504, 510, ¶ 16 (App. 2009)
(finding no jurisdiction over premature notice of appeal when not cured by
supplemental notice of appeal). Mother’s appeal was therefore timely and
we have jurisdiction over this matter pursuant to A.R.S. § 12–2101.A.
II. The Court’s Statutory Findings and Orders
¶10 Mother challenges the sufficiency of the evidence supporting
the court’s statutory findings of fact. Section 25-403 states the court must
make decisions regarding “legal decision-making and parenting time . . . in
accordance with the best interests of the child.” The statute provides a list
of nonexclusive factors “relevant to the child’s physical and emotional well-
being” that the court must consider in making its determination. See id.
Under sections 25-403.03 and -403.04, respectively, the court must also
consider whether any acts of domestic violence or any substance abuse
issues have occurred that would affect the best interests of the child.
¶11 We will not overturn the family court’s findings and order
absent an abuse of discretion. In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶
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3 (App. 2002). We view the evidence in the light most favorable to
sustaining the family court’s decision and will uphold the court’s ruling if
reasonable evidence in the record supports the court’s findings. Vincent v.
Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015). Because the “family court is in
the best position to judge the credibility of witnesses and resolve conflicting
evidence,” we defer to its determinations on the credibility of witnesses. Id.
at ¶ 18.
¶12 Mother argues the family court’s findings regarding the
factors in sections 25-403.A.4.-6., and 8., and sections 25-403.03 and -403.04
constitute an abuse of discretion. Mother, however, has shown no such
error. Mother cites Reid v. Reid, 222 Ariz. 204 (App. 2009) to support her
argument that the court’s findings here were inadequate. In Reid, the
superior court simply stated its decision was in the children’s best interests,
but provided “no explanation” for its conclusion. Id. at 207, ¶ 13. Such is
not the case here, as the court addressed each statutory factor and explained
that it could not “award either parent sole legal decision-making authority”
when the court had concerns with both parents. The court further
explained that Mother “may still have an alcohol problem” and Father has
mental health issues that they each need to address. The court then
concluded “Father poses no threat to the girls” and “they miss seeing their
father.”
¶13 After reviewing the record, including the Child Interview
Report, which was filed with the court before the hearing, supports the
court’s findings of fact as to the factors stated under A.R.S. §§ 25-403.A.4.
(wishes of the child) and .6 (which parent is more likely to allow contact
with the other parent). Mother asserts the court erred in relying on the
report because it was not entered into evidence at the evidentiary hearing.
The court, however, ordered the Child Interview Report and its June 16,
2014 temporary order stated that it anticipated the report would assist the
court in its assessment of the best interests factors in section 25-403. See
Ariz. R. Fam. Law P. (ARFLP) 2.B.3.b. (“Any report, document, or
standardized form required to be submitted to the court for the current
hearing or trial may be considered as evidence if either filed with the court
or admitted into evidence by the court.”). The court acknowledged that it
would consider the report during the hearing when it stated: “It’s a part of
the record because it is something the court ordered.” Mother did not object
to this statement, nor did she object when Father’s counsel questioned
Mother about the report during the hearing without moving it into
evidence.
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¶14 Mother also asserts the court should not have relied on the
report because the parties did not receive a recording of the interview
pursuant to ARFLP 12. However, Mother does not argue, and we do not
find in the record, that Mother ever requested a copy of a recording of the
interview, nor did she dispute any of the children’s statements recorded in
the Child Interview Report or discussed at the hearing. Further, as noted
above, Mother did not object to the contents of the report being discussed
during the hearing, or the court’s statement indicating it would consider
the report. Mother has therefore waived this argument on appeal. See
Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) (“[A]bsent extraordinary
circumstances, errors not raised in the trial court cannot be raised on
appeal.”).
¶15 Mother also challenges the court’s findings regarding
domestic violence, under § 25-403.03. In its initial ruling on the petition to
modify, the court found there were “no alleged acts of domestic violence”
asserted. However, in its ruling on the motion for reconsideration, the court
modified this finding, stating:
Both parents assert domestic violence by the other parent.
While Mother asserts more acts than Father, Father testified
that police removed Mother from the house in handcuffs after
she was aggressive with him. The children reported hearing
their parents yell, but saw no physical fighting. The Court
concludes that both parents have committed domestic
violence.
¶16 Father’s testimony at the hearing supports this finding. The
Child Interview Report also supports the court’s finding, as the children
both recounted hearing their parents argue in the past. The children also
stated the police were called on many of these occasions, “sometimes” by
Mother and “sometimes” by Father.
¶17 Mother also asserts that the court should have considered
evidence of events that occurred after the hearing on her petition to modify,
such as Father’s notice of change of address showing he has moved to
California, his plea of guilty to a charge of Interfering with Judicial
Proceedings on May 7, 2015, and his subsequent plea in September 2016 to
charges related to the April 28, 2014 incident. The alleged facts that Mother
raises, however, were not part of the record before the family court at the
time of the hearing. Thus, the court properly did not consider them in its
decision on the motion for reconsideration and we may not consider them
here. See ARFLP 84(A) (listing grounds for motion for reconsideration,
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including that “[t]he court did not properly consider or weigh all of the
admitted evidence”) (emphasis added); see also Ness v. W. Sec. Life Ins. Co., 174
Ariz. 497, 500 (App. 1992) (stating an appellate court cannot consider
evidence outside the trial court record).
¶18 Finally, Mother contends the court erred in finding that she
“abused alcohol,” when it considered the factors under section 25-403.04.
The evidence of record, including Mother’s own testimony at the hearing,
is sufficient to support the court’s finding and we reject Mother’s invitation
to re-weigh the evidence on appeal. See Cauble v. Osselaer, 150 Ariz. 256, 258
(App. 1986) (“Where a factual determination within the trial court’s
discretion is challenged on appeal, we cannot reweigh the evidence and
substitute our own evaluation of it.”).
¶19 Mother argues that the court has no authority to order her to
participate in alcohol testing or a lifestyle assessment through TASC.
Under A.R.S. § 25-411.J., the family court may exercise its power to award
or restrict parenting time when “it finds that the parenting time would
endanger seriously the child’s physical, mental, moral or emotional health.”
Further, § 25-403.04.B.3. provides that in considering whether a parent has
abused drugs or alcohol, the court “shall consider evidence” including the
“[r]esults of alcohol or drug screening provided by a facility approved by
the department of health services.” Here, in spite of two tests by Mother
which were negative for alcohol, the court found Mother “may still have an
alcohol problem.” Therefore, the court is within its discretion to consider
Mother’s participation in alcohol testing and services and to condition her
enjoyment of parenting time on its order that she participate, if it finds that
Mother’s alcohol abuse negatively affects the children’s well-being. Because
there is evidence showing that Mother has an alcohol abuse issue, we find
the court did not abuse its discretion in ordering Mother to complete the
lifestyle assessment.
¶20 Finally, Mother has not shown that the court abused its
discretion in declining to make the orders Mother requested regarding
Father’s parenting time. A psychological evaluation report supports the
court’s finding that “Father is no threat to the girls.” The report states that
Father’s expressions of anger are “not likely to be physical” and that he
“does not present an imminent risk to his children.” The report
recommended that “contact between Father and his children be re-
established as soon as is reasonably possible.” Further, the Child Interview
Report showed that the children had no fear that their Father might harm
them.
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Decision of the Court
III. Attorney Fees
¶21 Mother challenges the court’s order denying her request for
an award of attorney fees and costs. We review a court’s decision whether
to award attorney fees under A.R.S. § 25-324 for an abuse of discretion.
Breitbart-Napp v. Napp, 216 Ariz. 74, 83, ¶ 35 (App. 2007). The family court
ordered each party to pay its own attorney fees and costs, reasoning that
“both parties had valid concerns about each other and the Court cannot find
that one parent was more unreasonable than the other.” As discussed
above, evidence in the record supports this finding. Therefore, the court
did not abuse its discretion. On appeal, both parties request attorney fees
and costs. In our discretion, we deny both parties’ requests.
CONCLUSION
¶22 For the foregoing reasons, we affirm the family court’s May 3,
2016 and June 7, 2016 rulings.
AMY M. WOOD • Clerk of the Court
FILED: AA
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